NEW JERSEY LAWYER

DAILY BRIEFING      03/22/2005


News Briefs

BILLS WOULD GIVE DOMESTIC VIOLENCE VICTIMS TIME OFF FOR COURT
Labor committees of both houses of the legislature in Trenton are considering bills guaranteeing victims of domestic violence or sexual assault can take time off from work to attend court hearings and take other precautions. Identical measures in both houses, S-2364 and A-3837, would grant up to 20 days’ unpaid leave for such victims to use for job training, counseling and help relocating, plus attending criminal or civil hearings against the assailant. 3-21-05

FEDS REVIEWING CORRUPTION PROBE TAPES
Federal authorities confirm they’re reviewing audiotapes of a political corruption investigation. Public release of the tapes is opposed by state Attorney General Peter C. Harvey. Michael Drewniak, a spokesman for the U.S. Attorney’s Office in Newark, is quoted in the Philadelphia Inquirer acknowledging federal authorities are “taking a look at” the tapes, which allegedly reveal that George B. Norcross III, one of the state Democratic Party’s most powerful leaders, was among those trying to influence the governmental decisions of Palmyra Mayor John Gural, while Gural, who made the recordings, was a councilman. In a motion in Burlington County Superior Court, Harvey is seeking to block the release, citing a need to protect the identities of innocent third parties. 3-21-05

ALLEGED CYBERCRIME HITS 1,000 INNOCENT CUSTOMERS
Here’s an addition to the tales of bystanders hurt in the commission of crimes when an Edison teen-ager allegedly was contracted by Jason S. Arabo, a Southfield, Mich.-based operator of clothing sales websites, to hack competitors’ sites. In so doing, the teen unexpectedly cracked into the computers of 1,000 of the competitions’ customers, causing an estimated $1 million to $2 million in damages. Arabo was arrested by federal authorities in New Jersey and faces up to five years in prison and a $250,00 fine. The teen’s name is being withheld. The two met in an internet chat room. 3-21-05

EAST JERSEY STATE PRISON INMATES SUE FOR RELIGIOUS SWEAT LODGE
Seeking to build a “sweat lodge” to perform purification rituals of their American Indian religion, two inmates at East Jersey State Prison are suing the state, accusing authorities of violating a five-year-old federal law that protects the free exercise of religion for those in prisons, nursing homes and other institutions. The suit, as well as similar ones nationwide, comes as the U.S. Supreme Court is considering arguments on a ruling in Ohio that the law violates separation of church and state by promoting religion behind bars. In New Jersey, convicted murderers Jesus Sanabria and David Russo have sued to build a wood-framed, tarp-covered hut they say is part of their Wiccan belief; officials say the structure would be a security risk. 3-21-05

ASBESTOS DEFENDANT SLATED FOR CHAPTER 11
ABB Ltd. plans to put its Lummus Global subsidiary, which is a defendant in thousands of asbestos-related lawsuits, in Chapter 11 bankruptcy protection to settle the claims. The Switzerland-based ABB further said it has added $232 million to its former $1.2 billion settlement offer. 3-21-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, MARCH 21, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, MARCH 21, 2005:

REAL PROPERTY
GRECZYN v. COLGATE-PALMOLIVE
New Jersey Supreme Court, A-2, March 21, 2005. (24 pages). Facts-on-Call Order No. 92371

When the plaintiff’s injury and the filing of a lawsuit occur within the period of repose, use of the fictitious-party practice allows a previously unknown, although functionally identified, designer or builder to be named after the expiration of the period of repose, as long as the plaintiff has acted diligently.

THE SUPREME COURT has announced that it will release an opinion in STATE IN THE INTEREST OF S.S., A-29/38/39, on March 22, 2005. The issue on appeal in S.S. addresses whether a juvenile who is brought before the juvenile court for conduct that would not be a crime if committed by an adult, such as truancy and running away, can subsequently be adjudicated delinquent for failing to comply with the court’s orders.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, MARCH 21, 2005.

NOT APPROVED FOR PUBLICATION
ARBITRATION
FEINSTEIN v. BDS REMODELING SERVICES, L.L.C.
Appellate Division, A-2555-03T1, March 21, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17754

Order directing that all disputes between the plaintiff homeowners and the defendant contractor and its president be submitted for final and binding arbitration by the American Arbitration Association reversed and remanded in an action concerning the defendants’ construction of an addition to the plaintiffs’ home; the plaintiffs filed an action asserting common law claims of breach of contract, breach of warranty, and negligence as well as statutory causes of action under the Consumer Fraud Act, the Home Improvement Practices Act, the Truth in Consumer Contract, Warranty, and Notice Act, and the Uniform Commercial Code; the arbitration clause in the construction agreement was unenforceable because it did not clearly state that the plaintiffs were waiving their right to litigate statutory claims; because the plaintiffs’ statutory claims would be decided by a trial, the interests of judicial economy dictated that the trial court should decide all of the claims.

DOMESTIC VIOLENCE
CLEARY v. CLEARY
Appellate Division, A-1536-03T5, March 21, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17753

Final domestic violence restraining order entered on remand reversed; although the Appellate Division’s February 2000 decision did not set forth a date by which the trial court should complete the remand, a delay of more than three years was “by any measure simply unacceptable”; the Appellate Division was “troubled” by the trial court’s references in its findings on remand to evidence that had been presented during the divorce proceedings, which were not part of the record in the domestic violence matter and which occurred some time after the original final restraining order was entered; the plaintiff ex-wife’s statement that the defendant ex-husband had “physically grabbed” her in the past (1) was the only evidence of the defendant’s prior conduct and (2) was an insufficient basis to conclude that the defendant’s outburst during a telephone conversation constituted harassment under N.J.S.A. 2C:33-4(a).

CIVIL PROCEDURE
QUIROZ v. ATHNASIOS
Appellate Division, A-6044-03T3, March 21, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17751

Law Division order denying the plaintiff’s motion to restore her complaint against the Unsatisfied Claim and Judgment Fund and the Commissioner of Banking and Insurance affirmed; the plaintiff was injured while she was a passenger in a taxi that had a collision with a phantom vehicle, she had no coverage of her own, and she sued the UCJF in the belief that the owner and driver of the taxi were uninsured; when it appeared that the owner and the driver were insured, the UCJF and the Commissioner moved for summary judgment, and the plaintiff entered into a stipulation of dismissal; when she learned that the owner and the driver were not insured, the plaintiff moved pursuant to Rule 1:13-7 to restore her complaint; because the complaint had not been dismissed administratively due to lack of prosecution, Rule 1:13-7 did not apply, and the plaintiff should have moved pursuant to Rule 4:50-1.

JURISDICTION
GORDON v. BAIME
Appellate Division, A-3612-03T1, March 21, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17755

Chancery Division order dismissing the plaintiff’s complaint to determine ownership of jewelry that had been the subject of litigation in New York affirmed; two sisters and their brother were the heirs to their mother’s estate, and litigation over the estate in the Nassau County Surrogate’s Court was resolved by a written settlement agreement in 1989; when the heir of one sister sued the other sister to resolve their interests in jewelry that had been inherited, the second sister brought a third-party action against the brother to determine his interest in the jewelry, and the Chancery Division dismissed the brother for lack of personal jurisdiction; the Appellate Division enforced the settlement agreement among the sisters and the brother, which contained a forum-selection clause naming the New York courts.

PUBLIC EMPLOYEES
NISSEL v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES RETIREMENT SYSTEM
Appellate Division, A-3044-03T1, March 21, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17752

Final determination of the Board of Trustees of the Public Employees’ Retirement System denying the petitioner’s claim for accidental disability benefits remanded for reconsideration; the petitioner was injured when the floor-buffing machine that he was operating malfunctioned and ran over his foot; in concluding that the petitioner did not satisfy the Kane v. Bd. of Trs., Police & Firemen’s Ret. Sys. “great rush of force” standard, the Board rejected the administrative law judge’s finding that the petitioner had not exaggerated by describing the malfunctioning machine as a “bucking bronco”; as in Cavalieri v. Bd. of Trs. of the Pub. Employees’ Ret. Sys., the Appellate Division reminded the Board that it is not free to “sift through the record anew to make its own decision” where the ALJ has made findings that are supported by the record and where the Board makes no attempt to explain why the ALJ’s findings were not supported by the evidence or were otherwise arbitrary.

ATTORNEY’S FEES
MOSS & INGLESE v. WADHWA
Appellate Division, A-4594-02T2, March 18, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17750

Judgment of $57,843.16 plus costs and interest against the defendant husband in an action by the plaintiff law firm to recover legal fees and costs reversed and remanded for a new trial but denial of the claim for attorney’s fees by the defendant wife under the frivolous litigation statute affirmed; the plaintiff sought to recover $57,792.64 for legal services provided between 1991 and 2000; the judgment, which was entered after a jury trial, was not supported by the evidence where the plaintiff’s billing statements had “serious problems”; the wife was not entitled to attorney’s fees under N.J.S.A. 2A:15-59.1 because the plaintiff’s complaint against her, which alleged that she had orally agreed to pay her husband’s legal fees, did not satisfy the tests for bad faith or for no basis in law or equity under the statute.

ATTORNEYS
WADHWA v. INGLESE
Appellate Division, A-4035-02T3, March 18, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17749

Summary judgment for the defendant attorney and the defendant law firm based on the plaintiff’s failure to supply an expert’s report in a legal malpractice action affirmed; the pro se plaintiff claimed that the defendants had negligently represented him and his wife in the underlying restitution action, and the defendants moved for summary judgment on November 8, 2002 after discovery ended and the plaintiff did not identify any expert witnesses in his answers to their interrogatories; in response, the plaintiff wrote two letters to the trial court in December 2002 to complain that the defendants had not complied with his discovery requests, but he did not move to compel discovery or to extend the discovery end date, did not submit an expert report before November 7, 2001, when discovery ended and the case was scheduled for mandatory, nonbinding arbitration, and did not establish exceptional circumstances that would justify an extension of discovery after November 7; summary judgment was appropriate where there was no “obvious breach of an equally obvious professional norm” that would have excused the plaintiff from presenting an expert’s report to establish the defendants’ standard of care and where the record did not establish a prima facie case of legal malpractice.


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